Evidence Act 2006

Admissibility rules, privilege, and confidentiality - Veracity and propensity - Evidence of propensity

43: Propensity evidence offered by prosecution about defendants

You could also call this:

"When can the prosecution use evidence about something you did before to prove you did something wrong?"

In a criminal trial, the prosecution can only use certain evidence about you if it is really important to the case. The Judge must decide if this evidence is more helpful than harmful to you. The Judge thinks about how relevant the evidence is to the issue at hand.

When the Judge is deciding how important the evidence is, they consider things like how often something has happened. They also think about how long ago it happened and how similar it is to what you are on trial for. The Judge looks at how many people are making similar allegations against you.

The Judge also thinks about whether people might be making similar allegations because they talked to each other. They consider if the things that happened are unusual or not. The Judge wants to make sure the evidence does not unfairly influence the people deciding your case.

When the Judge is thinking about how the evidence might affect you, they consider if it will make the fact-finder biased against you. They also think about if the fact-finder will give too much weight to the evidence of other things you might have done. The Judge's job is to make sure the evidence is used fairly in your trial.

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This page was last updated on 29 June 2025

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM393633.

Topics:

Crime and justice > Courts and legal helpCrime and justice > Criminal law

42: Propensity evidence about co-defendants, or

"Talking about what a co-defendant has done before in your defence"

44: Evidence of sexual experience or sexual disposition of complainants in sexual cases, or

"What a complainant's sexual past can be talked about in a sexual case"

Part 2Admissibility rules, privilege, and confidentiality
Veracity and propensity: Evidence of propensity

43Propensity evidence offered by prosecution about defendants

The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
the frequency with which the acts, omissions, events, or circumstances that are the subject of the evidence have occurred:
the connection in time between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
the extent of the similarity between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
the extent to which the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.